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May 16, 2023

Watching a quartet of SCOTUS criminal justices cases as the Term starts to wind down

As has been true in the last few Terms, the current Supreme Court Term is almost certain to be remembered for decisions outside the core realm of criminal justice.  But it has still already been an interesting SCOTUS Term for hard-core criminal justice fans with seemingly lots of (small?) wins for criminal defendants in cases like Reed, Cruz, Ciminelli, and Percoco.  Of course, the "easy" cases tend to be resolved first, and I would not expect quite so many wins for criminal defendants in the weeks ahead.  

By my rough count, there are still around ten still-pending criminal justice (or criminal-justice-related) cases for the Justices still to resolve before they head off for their summer vacations.  All the remaining cases could prove interesting and consequential, but here are four remaining cases that have most captured my attention (with help from this SCOTUSblog list):

Jones v. HendrixNo. 21-857 [Arg: 11.1.2022]
Issue(s): Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.
Dubin v. U.S.No. 22-10 [Arg: 2.27.2023]
Issue(s): Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.
Counterman v. ColoradoNo. 22-138 [Arg: 04.19.2023]
Issue(s): Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.
Tyler v. Hennepin County, MinnesotaNo. 22-166 [Arg: 04.26.2023]
Issue(s): (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

I would welcome in the comments any predictions about likely outcomes in these cases and/or the flagging of other pending criminal-justice-related cases from this Term that folks are keeping a close eye on.  We are not quite to the final stretch of the SCOTUS Term, but there are opinions coming this Thursday and likely just about every week from now until the end of June.

May 16, 2023 at 08:47 PM | Permalink


Jones v. Hendrix has the potential to be a blockbuster or a death knell for those of us who regularly practice federal habeas law.

SCOTUS could functionally gut 2241 with this case and I have a sneaking suspicion that is what is going to happen.

On the flipside, SCOTUS could open the door to getting around all kinds of 2255 second or successive B.S. problems which often keep folks incarcerated. I personally have two different cases waiting on a Jones v. Hendrix ruling.

Keeping my fingers crossed!

Posted by: Zachary Newland | May 17, 2023 10:45:13 AM

Looking at other potential cases of interest:

1) Not directly criminal, but the Google and Twitter cases from February will have some criminal law spin for the liability of internet content providers.

2) Hansen -- the encouraging unlawful immigration case. Depending on how resolved, I could see some of the reasoning coming into play in garden-variety accomplice liability cases which also use an encouraging theory.

3) Smith -- the remedy for improper venue. If a trial in the wrong venue implicates double jeopardy, that could impact state cases too.

4) Samia -- redactions of codefendant statements in joint trial. While feds regularly do joint trials, states do joint trial on occasion. If we get a clear opinion on how to properly redact that could impact whether state prosecutors start to use joint trials more regularly or use them even less than we currently do.

As far as predictions, I think Jones narrows when an inmate can use 2241 to evade restrictions in 2244 and 2255 on successive petitions.

I think the decision in Dubin will be very muddled (as to when the use of another's identity is enough for the enhancement) but will favor the defendant in this case.

Counterman -- While I can see a split from the First Amendment absolutists, I think the majority will find that an objective standard is adequate to prevent a chilling effect.

Tyler -- I think the home owner wins.

On the four that I noted, not sure on the internet cases or the encouraging immigration (although I think it is easier to write the opinion favoring the prosecution on the immigration case). My hunch is that vacating a conviction for the wrong venue is a manifest necessity and does not bar a retrial in the correct venue. And on Samia, I fear a plurality opinion that leaves it unclear what needs to be done in the next case to satisfy the Confrontation Clause.

Posted by: tmm | May 17, 2023 1:10:21 PM


The Supreme Court wouldn't be "gutting" 2241 but, rather, returning the statute to the meaning it had in 1948. That courts expanded its meaning after AEDPA because they thought it would be more "fair" does not justify the expansion. Congress doesn't have to permit successive 2255s at all, so the fact that it chose to allow some but not others does not give right-thinking judges license to re-write the statute to achieve a more "just" result. It's up to Congress to amend subsection (h) or up to the Executive to grant clemency when a new decision narrows the scope of the statute. That's what separation of powers is all about.

Da Man

Posted by: Da Man | May 17, 2023 4:38:15 PM

Prior to the Supreme Court's decision in United States v. Cotton, 535 U.S. 625 (2002), all 12 Federal Circuit Court that hears criminal appeals had held that "drug quantity" was not an element of a Federal drug crime, 21 U.S.C. section 841(b). The Supreme Court changed that with its Cotton decision; it was the first time in American judicial history that the Supreme Court disagreed with the mutually agreed decisions of the 12 Federal Circuit Courts. Prior to Cotton, based on the Court's 19th century decision in Ex Parte Bain, 121 U.S. 1 (1887), omission of an element of the offense sought to be charged from the indictment was a jurisdictional defect, meaning that the indictment failed to charge a crime. If the Supreme Court had not over-ruled Ex Parte Bain, they would have had to reverse thousands of Federal drug convictions (even guilty pleas) and release thousands from prison. How the Supreme Court finessed the situation is a bit subtle. Because the decision about drug quantity being an element of the offense was a matter of statutory interpretation, it was automatically retroactive, since it said what the statute had actually met from the day Congress passed it. The reversal of Ex Parte Bain, however, should only have applied to Cotton itself and prospectively -- it wasn't really retroactive, as was the first half of the decision about drug quantity.

Posted by: Jim Gormley | May 17, 2023 8:56:52 PM


Interestingly, it wasn't until an offhanded remark by Justice Rehnquist in Bousley that the Supreme Court expressed the view that a narrowing construction is automatically retroactive. Many lower courts had so held after Davis v. United States (1974), which said that an actual innocence claim due to a narrowing construction is cognizable under 2255 but the court there (pre-Teague) remanded so the lower court could tackle retroactivity.

Posted by: Da Man | May 18, 2023 12:55:48 PM

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